Baum v. State

Decision Date03 May 1976
Docket NumberNo. 875S184,875S184
PartiesEdwin Paul BAUM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

David M. Adams, Castor, Richards & Adams, Noblesville, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted by jury of murder in the second degree 1 and was sentenced to life imprisonment. His appeal to this Court presents seven issues:

1. Constitutionality of the grand jury composition.

2. Constitutionality of the petit jury composition.

3. Admissibility into evidence of testimony objected to as hearsay.

4. Admissibility into evidence of a preautopsy photograph of the decedent.

5. Admissibility of opinion testimony from the police officers concerning the sanity of the defendant.

6. Sufficiency of the evidence.

7. Correctness of certain instructions.


Under this assignment, the defendant charges that persons over sixty-five years of age were, at the time the indictment was found, systematically excluded from grand jury service in Marion County. There is nothing in the record before us to so indicate, other than the statement to that effect in the motion to correct errors. Assuming such to be fact, however, we do not see any likelihood of partiality emanating therefrom, and we are aware of no case suggesting such. The defendant has cited us to Shack v. State, (1972) 259 Ind. 450, 288 N.E.2d 155 for the proposition that the major requirement should be that the system of selection is not arbitrary. We do not view the exclusion of a particular group as being arbitrary, however, if there is some logical reason for such exclusion. In fact, in that case it was disclosed that the primary concern of the jury commissioners was that the people drawn for the panel were between the ages of twenty-one and sixty-five.


The defendant sought a special venire to include persons upon the petit jury who were not registered voters, alleging that he was not a registered voter and that the statute 2 which requires jurors to be registered voters denied him his constitutional right to a jury of his peers.

To restrict jury service to a special group or to exclude identifiable segments playing major roles in the community cannot be squared with the constitutional concept of a jury trial. It was so stated in Taylor v. Louisiana, (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, 698. But the selection of petit jurors from the rolls of registered voters has never been thought to violate this principle. United States v. Lewis, (3d Cir. 1973) 472 F.2d 252; Taylor v. State, (1973) 260 Ind. 264, 295 N.E.2d 600. We are not cognizant of any prejudice in our society against those persons who elect not to participate in the election processes which conceivably could impart jury bias against an accused who happened to be among them.


Referring to preceding testimony by the witness to the effect that the defendant had told her he was going to take the decedent to the hospital, the prosecutor asked the witness, 'And when was that, that he stopped the car?' The witness answered: 'It was after he was supposed to have stabbed her.' The defendant moved to strike the answer as hearsay, and the motion was overruled.

The answer may have been subject to a motion to strike in that the witness did not speak from first-hand knowledge. This question was not raised. The statement, however, was not hearsay which, under our rules of evidence, is an extrajudicial assertion offered into evidence to show the truth of matters asserted therein and thus resting for its value upon the credibility of the out-of-court asserter. Harvey v. State, (1971) 256 Ind. 473, 476, 269 N.E.2d 759. It is apparent that the defendant objected to the suggestion that he had stabbed the victim. However, the answer was not offered as evidence that he had. Rather, it was evidence that someone other than the witness had so accused him.


The defendant also contends that a pre-autopsy photograph showing the nude body of the decedent from just below the waist upward should have been excluded. The picture showed a dark spot above the left breast, the location of the fatal wound. This picture was relevant to show the cause of death, and it was not unduly gruesome under Carroll v. State, (1975) Ind., 338 N.E.2d 264.


The defendant next asserts that proper foundations were not laid for the lay opinions of sanity given by police officers Ashton and Stout.

Officer Stout testified that he spoke to the defendant for about forty-five minutes and took his statement from him. He further stated that the defendant appeared coherent.

Officer Ashton was extensively questioned regarding his contact with the defendant. Ashton was asked how the defendant appeared, whether defendant's speech was coherent, whether defendant appeared rational, nervous, excited or angry and whether he could detect if the defendant had been drinking. Ashton was also asked how long he was with the defendant and how long the defendant had been in custody when they first met.

Traditionally, a layman has been required to state the facts upon which his opinion is based. Cockrum v. State, (1968) 250 Ind. 366, 234 N.E.2d 479; Colee v. State, (1881) 75 Ind. 511. However, we have held that it is sufficient for the layman to state that he saw and spoke upon one accasion with the person concerning whose sanity he is giving an opinion. Warren v. State, (1941) 218 Ind. 378, 33 N.E.2d 105. Anything more goes only to the weight of the opinion. Colee, supra.

'It seems fair to observe that the prevailing practice in respect to the admission of the opinions of non-expert witnesses may well be described, not as a rule excluding opinions, but as a rule of preference. The more concrete description is preferred to the more abstract. Moreover, it seems that the principal impact of the rule is upon the form of examination. The questions, while they cannot suggest the particular details desired, else they will be leading, must nevertheless call for the most specific account that the witness can give.' McCormick, Law of Evidence, § 11 (2d Ed.1972).

The foundations for the opinion testimony complained of met the minimal test of Warren, supra, the credibility of the testimony was a matter for jury assessment.


Concerning the challenge to the sufficiency of the evidence, the defendant contends that there was a failure of proof beyond a reasonable doubt of premeditated malice and sanity. Our holding with respect to the admissibility of the testimony of Police Officers Stout and Ashton disposes of any question of sufficiency upon that issue, inasmuch as both expressed their opinion that the defendant was sane. Additionally, however, there was other lay testimony from which the jury could have found, beyond a reasonable doubt, that the defendant was sane at the time he stabbed his wife.

When the sufficiency of the evidence is raised as an issue upon appeal, this Court will consider only that evidence of probative value most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. If such evidence and inferences would permit a reasonable trier of fact to find the existence of each element of the crime charged beyond a reasonable doubt, the verdict will not be disturbed. Dozier v. State, (1976) Ind., 343 N.E.2d 783; Birkla v. State, (1975) Ind.,323 N.E.2d 645; Coleman v. State, (1975) Ind., 339 N.E.2d 51; Wilson v. State, (1973) 259 Ind. 657, 291 N.E.2d 65.

The victim of the homicide was the defendant's estranged wife. On the date of the crime, the defendant was residing with his wife's sister, Shellia. On that day, the wife brought their young children to Shellia's home for care. Shellia testified that the defendant followed his...

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